The State Bar of Texas violated the First Amendment rights of some of its members when it used their mandatory membership dues to support legislation that redefined marriage and financed efforts to make state laws more favorable to low-income Texans, the U.S. Court of Appeals for the Fifth Circuit ruled Friday.
In a 34-page precedent-setting opinion, a three-judge panel of the Fifth Circuit issued a preliminary injunction “preventing the bar from requiring the plaintiffs to join or pay dues” until the case is resolved.
The appellate court did not declare that the Texas Bar’s mandatory membership or mandatory dues are generally speaking illegal, but that its “opt-out procedures” for those members who object “are constitutionally inadequate.”
The Fifth U.S. Circuit case is Tony K. McDonald: Joshua B. Hammer and Mark Pulliam v. Joe K. Longley, et al. No. 20-50448 Opinion
The Fifth Circuit decision is a major defeat for progressives in the state bar, but legal experts say the opinion could have been much, much worse.
The three appellate judges fell far short of agreeing with the plaintiffs’ argument that the State Bar of Texas should not be able to require mandatory dues at all or should be ordered to stop participating in any political or ideological activities.
But the appellate court also rejected arguments by the State Bar that all of its activities are “germane to its interests in regulating the legal profession and improving the quality of legal services.”
“In sum, the bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights,” Judge Jerry Smith wrote. “There are multiple other constitutional options: The bar can cease engaging in nongermane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s.
“But it may not continue mandating membership in the bar as currently structured or engaging in its current activities,” Judge Smith wrote. “The scope of the Bar’s legislative program belies its contention that every single bill it has lobbied for is germane to regulating the legal profession or improving the quality of legal services.”
Judge Smith was joined in the unanimous opinion by circuit judges Don Willett and Kyle Duncan.
Multiple state bar leaders, speaking on the condition that they not be identified, said Friday that they are disappointed in the Fifth Circuit’s ruling and that it will require significant changes to its lobbying efforts and to its due’s collecting structure and process.
In a surprising twist, Judge Smith rejected the plaintiffs’ contention that the state bar’s efforts at pursuing diversity within the legal profession is a violation of their rights.
“They are aimed at creating a fair and equal legal profession for minority, women, and LGBT attorneys, which is a form of regulating the legal profession,” the three-judge panel ruled. “And the bar contends that those initiatives help to build and maintain the public’s trust in the legal profession and the judicial process as a whole, which is an improvement in the quality of legal services.
“The germaneness test does not require that there be unanimity on the bar’s position on what best regulates the legal profession — that is typically for the bar to decide,” Judge Smith wrote.
The Fifth Circuit ordered that the case be returned to the federal district court so that the trial judge can implement and enforce the appellate court’s mandate.
“There will clearly be proceedings in the district court to broaden the scope of that injunction, or perhaps a new lawsuit,” said David Coale, an appellate law expert at Lynn Pinker. “The plaintiffs will ask that this [improper conduct] be stopped until the case is fully tried. The bar will likely ask for some kind of interim measure that allows some level of support.”
While the Fifth Circuit’s preliminary injunction grants specific relief to the three plaintiffs in the litigation – Tony McDonald, Joshua Hammer and Mark Pulliam – legal experts say they expect scores – possibly even hundreds – of Texas lawyers to ask to have their names added as plaintiffs in the case. The other option is that lawyers for the plaintiffs could ask the district court to convert the current lawsuit into a class action.
Probably the biggest headache ahead for state bar officials regards mandatory dues and revamping the process allowing members who object to its efforts to opt out of paying for the programs they oppose.
The plaintiffs asked the court to require the bar to create an “opt-in procedure,” but the Fifth Circuit rejected it. Instead, the three-judge panel said that other appellate courts have allowed bar associations to mandate fees but that they must “constitutionally use some sort of opt-out procedure for giving pro-rata refunds.”
“The bar does not furnish Texas attorneys with meaningful notice regarding how their dues will be spent,” Judge Smith wrote. “Nor does it provide them with any breakdown of where their fees go. Instead, it places the onus on objecting attorneys to parse the bar’s proposed budget — which only details expenses at the line-item level, often without significant explanation — to determine which activities might be objectionable.”
The Fifth Circuit said that “is a far cry” from the notice that the Supreme Court said was required in Chicago Teachers Union v. Hudson, a 1986 decision that “estimated the breakdown between chargeable and non-chargeable activities and explains how those amounts were determined.”
“The bar then leaves the objecting attorney with precious few worthwhile options to express his or her disapproval,” Judge Smith said. “Though attorneys may register their complaints with committees and sections or lodge an objection at the bar’s annual hearing on its proposed budget, those processes give cold comfort: Any objector’s opposition can be summarily overruled, leaving that lawyer on the hook to fund ideological activities that he or she does not support.”
“To obtain a refund, the bar requires that attorneys object to a specific activity,” the court stated. “Moreover, whether a refund is available is left to the sole discretion of the bar’s executive director, and refunds are issued only for the convenience of the Bar.
“In the event a refund is denied, the objecting attorney is out of luck,” Judge Smith said. “The bar has record of only one member — who is not among the plaintiffs and who lodged the objection after the plaintiffs filed this lawsuit — using the procedure since its adoption in 2005.”
That, the Fifth Circuit ruled, was constitutionally unacceptable.
State Bar of Texas Executive Director Trey Apffel issued the following statement:
“We are gratified that the Fifth Circuit panel upheld the constitutionality of the State Bar’s continuing legal education and annual meeting programming, diversity initiatives, Texas Bar Journal and the bulk of our access to justice initiatives. We continue to believe the State Bar’s legislative program and all of its access to justice initiatives are germane to regulating the legal profession and improving the quality of legal services, and respectfully disagree with the panel’s contrary conclusion. We are assessing the bar’s next steps in light of the panel’s opinion.”
Updated at 7:45pm July 2